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Sanders v. Saffle, 10th Cir. (2000)
Sanders v. Saffle, 10th Cir. (2000)
MAR 21 2000
PATRICK FISHER
Clerk
vs.
JAMES SAFFLE,
No. 99-6398
(D.C. No. CIV-99-809-C)
(W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges. **
Mr. Sanders, an inmate appearing pro se, seeks to appeal from the denial of
his 28 U.S.C. 2254 petition. Mr. Sanders is incarcerated in an Oklahoma
correctional facility on a conviction for larceny of merchandise from a retailer
after former conviction of two or more felonies, for which he was sentenced to
forty years imprisonment. On December 29, 1995, he escaped from the control of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
**
statute and the policy are in open conflict, and therefore, the policy is
constitutionally invalid. This argument is without merit. The statute is not
mandatory or exclusive; the warden may restore lost credits based upon
whatever further requirements the ODOC may care to apply. The policy provides
these further requirements:
the facility/district head may grant restoration of lost
earned credit under the following conditions: . . .
(3)
(4)
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(To fall within the ex post facto clause, a law must be retrospective that is it
must apply to events occurring before its enactment. . . .) (citation omitted).
Finally, Mr. Sanders alleges violations of equal protection because prior to
the DOC enactment of OP-060211 . . . , Oklahoma prison inmates at maximum,
medium and minimum security Oklahoma prison facilities, similar (if not
identical) situated as Mr. Sanders herein . . . were being restored lost earned
credits by the Wardens or superintendents . . . . Pet. Br. (Form A-16) at 2a.
However, the policy of the ODOC in regard to inmates prior to the passage of the
policy is not relevant for purposes of equal protection because those inmates are
not similarly situated to petitioner. In order to show an equal protection
violation, Mr. Sanders would have to allege that medium security inmates with an
escape misconduct had their lost credits restored after the effective date of the
policy. He has failed to do so, and his equal protection claim must fail.
We DENY a certificate of appealability, DENY the motion to proceed in
forma pauperis, and DISMISS the appeal.
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